| Susman v Commerzbank Capital Mkts. Corp. |
| 2012 NY Slip Op 03750 [95 AD3d 589] |
| May 10, 2012 |
| Appellate Division, First Department |
| Jay Susman, Appellant, v Commerzbank Capital MarketsCorporation et al., Respondents. |
—[*1] Epstein Becker & Green, P.C., New York (Peter L. Altieri of counsel), forrespondents.
Order, Supreme Court, New York County (O. Peter Sherwood, J.), entered December 5,2011, which granted defendants' motion to dismiss the complaint pursuant to CPLR 3211,unanimously affirmed, without costs.
Supreme Court properly dismissed the first cause of action for breach of contract since thedocumentary evidence conclusively established that plaintiff was an at-will employee and thusdefendants were authorized to terminate his employment at any time for any reason, or for noreason (see Smalley v DreyfusCorp., 10 NY3d 55 [2008]). Plaintiff argues that his agreement was modified by variousoral assurances, which were confirmed in certain writings. However, to the extent plaintiff relieson oral promises of continued employment, he could not reasonably rely on such promises as anat-will employee, and those promises do not modify the at-will doctrine (Smalley, 10NY3d at 58-59; Ullmann v Norma Kamali, Inc., 207 AD2d 691, 692 [1994]). Further, thewritings plaintiff relies on consist of general company documents which did not conform to therequirements set forth in his employment agreement, i.e. they were not signed by plaintiff and amember of his employer, and did not clearly promise plaintiff employment for a certain period oftime.
Plaintiff argues that his termination was in retaliation for refusing to partake in financialdealings with Iran's Central Bank, allegedly in violation of federal law, and thus his dischargewas not subject to the at-will doctrine because it violated Labor Law § 740. However,defendants' alleged financial dealings did not create a substantial and specific danger to thepublic health or safety within the meaning of Labor Law § 740 (see Peace v KRNH, Inc., 12 AD3d914 [2004], lv denied 4 NY3d 705 [2005]; Remba v Federation Empl. &Guidance Serv., 76 NY2d 801 [1990]).
As for the second and third causes of action, the court properly dismissed them as duplicativeof the breach of contract claim (seeCelle v Barclays Bank P.L.C., 48 AD3d 301 [2008]). In addition, to the extent thesecond cause of action was for promissory estoppel, such a claim cannot stand when there is acontract between the parties (see SAA-A, Inc. v Morgan Stanley Dean Witter & Co., 281AD2d 201, 203 [2001]). Further, to the extent the second cause of action was for tortiousinterference with prospective economic advantage, it was barred by the three-year statute oflimitations (see Besicorp, Ltd. v Kahn, 290 AD2d 147, 150 [2002], lv denied[*2]98 NY2d 601 [2002]), as was the third cause of action forprima facie tort (id.). In any event, the prima facie tort claim fails because plaintiff didnot allege that defendants engaged in tortious conduct separate and apart from their allegedfailure to fulfill their contractual obligations (see New York Univ. v Continental Ins. Co.,87 NY2d 308 [1995]).
Plaintiff's contention that the arbitration to recover his unreimbursed business expensestolled the statute of limitations on his second and third causes of action is unavailing. "To toll thestatute of limitations, the arbitration must have been 'instituted by the parties in order to resolvethe present controversy' " (Troeller vKlein, 82 AD3d 513, 514 [2011] [citation omitted]), and the issues raised here aredistinct from the issue in the arbitration.
We have considered plaintiff's remaining arguments and find them unavailing.Concur—Friedman, J.P., Sweeny, DeGrasse, Abdus-Salaam and Román, JJ.